The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Latest ProPublica Story About Ginni Thomas
ProPublica obtained a recording of a call that the First Liberty Institute held with donors. [For full disclosure, I have spoken at several First Liberty events.] As readers of this blog likely know, First Liberty has litigated landmark religious liberty cases before the Supreme Court, including Kennedy v. Bremerton School District, Groff v. DeJoy, and Carson v. Makin.
The biggest reveal is that Kelly Shackelford, the organization's longtime leader, read over the call an email he received from Ginni Thomas. Thomas praised First Liberty's efforts to oppose so-called Court "reform." And here is the quote that has generated the most attention:
"YOU GUYS HAVE FILLED THE SAILS OF MANY JUDGES. CAN I JUST TELL YOU, THANK YOU SO, SO, SO MUCH."
In the Washington Post, Ruth Marcus calls on Justice Thomas to recuse himself from any case involving First Liberty:
There isn't merely an ethics code to which the justices have voluntarily subjected themselves, albeit under duress. There's a federal law that requires justices, like all other judges, to recuse themselves in situations in which their impartiality might reasonably be questioned.
Clarence Thomas, apparently, didn't think matters rose to that level when it came to election-related cases. But how can he justify continuing to sit on cases involving First Liberty now that we know Ginni Thomas's is "SO, SO, SO" beholden to the group?
Nothing about the remark suggests that Justice Thomas is "beholden" to First Liberty. But even assuming there was merit to the claim, Marcus's charge misses the mark, wildly. Let's review some history.
First, during the New Deal, Chief Justice Charles Evans Hughes wrote a letter to Congress to oppose the Court Packing bill. Yes, the presiding officer of the Supreme Court actively lobbied against the President's plan. At least until recently, Hughes's role was celebrated. If Hughes could oppose legislation, it seems far more attenuated to say a Justice's spouse cannot express an opinion in a private correspondence to a group opposing Court "reform" legislation.
Second, federal judges have lobbied Congress for pay increases. More recently, some judges have lobbied Congress for legislation to protect a judge's identity. Judges generally cannot engage in politics, except, it seems, when the politics concerns the judiciary. There are many such examples. This overt lobbying is far more serious than the spouse of a judge thanking an organization for defending the judiciary.
Third, since I am in the spirit of talking about RBG today, in June 2008 Justice Ginsburg spoke at an ACLU event and praised the organization, even as ACLU cases were pending. No recusal.
Fourth, I can tell you from experience that judges routinely express both gratitude and dismay with what people write and say about them. I've been raked over the coals by some federal judges over my writings. I've also been praised by federal judges for my writings. It goes with the territory. There was a time where the American Bar Association and other groups spoke out against efforts to "impeach Earl Warren." Do we really think Earl Warren never said "thank you"?
Here, Ginni was expressing a sentiment that is widely held, but is not commonly expressed. Where are all the "Democracy" people on the Court packing plan? Has Mike Luttig said a word about jurisdiction stripping, which Kamala Harris has endorsed? There are far too few people willing to defend the Court. And I'm not surprised that Ginni expresses her gratitude.
Finally, I presume that every word I write or speak, whether in an email, text message, or class, will one day wind up in ProPublica. Privacy, like the Constitution, is dead. And I choose my words accordingly.
